WELLSLEGAL SERVICE 2018
RELIGIOUS FREEDOM
Brenda Hale
This service is all about what religion asks of us in the legal system as people – good judging, mercy, philanthropy, and fair and equal treatment of all. But as many of us here are involved with the legal system, I want to ask what religion asks of the law itself?
We have all just said the creed – a moving summary of what we as Christians believe about our God and his sacrificesfor us. It tells us two things about the nature of religious belief. First, that what we believe is very different from what members of other religions believe, but we eachthinkour beliefs to be true. And second, that religious truth is different from scientific truth. The Supreme Court has described religion as “a spiritual or non-secular belief system, which claims to explain mankind’s place in the universe and relationship with the infinite and teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with that belief system . . . By spiritual or non-secular [is meant] a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science.”[1]In other words, religious belief by its very nature is not susceptible to scientific proof, though that does not mean that it is not true.[2]
Religion tends to make two different sorts of claim upon the law, one which I believe to be legitimate and one which I believe to be illegitimate.
The legitimate claim is to freedom - of thought, conscience and belief – the freedom to believe what one wishes, to express those beliefs, to manifest them, in worship, teaching, practice and observance, and to associate with others in order to do so, the right to bring up our children in our own beliefs, and the right not to be treated less favourably than others because of those beliefs. These claims are recognised in our law – in articles 8, 9, 10 and 11 of the European Convention on Human Rights, which are made part of United Kingdom law by the Human Rights Act 1998, and in the Equality Act 2010, which includes “religion or belief” among the characteristics protected from discrimination by the suppliers of employment, training, accommodation, goods and services, including public services.
But this protection brings several problems with it. First, it is given to all religions and beliefs, including the lack of them. As the European Court of Human Rights has often said (for example, whenupholding the French ban on wearing face coverings in public), “freedom of thought, conscience and religion is one of the foundations of a democratic society . . . This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”.[3] This pluralism is a challenge for all of us, because, by definition, if we believe in the Apostolic creed we do not believe in the central tenets of other faiths. And other faiths may not afford us the same toleration as we are obliged to offer them. We may have to respect all faiths even if all faiths do not respect us.
Secondly, as the role of the State is to be a “neutral and impartial organiser of the exercise of various religions, faiths and beliefs”, its “duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the way those beliefs are expressed”.[4] This, of course, includes the courts. So, for example, we were not supposed to decide whether the belief of some Christian sects that to spare the rod is to spoil the child is indeed supported by scripture.[5]Nor could we decide whether the Prophet’s instruction (to both sexes) to dress modestly required a girl who had reached puberty to cover herself from neck to toe in a long black garment called a jilbab.[6] We could only investigate whether this was genuinely her belief, rather than one foisted upon her by her male relatives.
Thirdly, while the State cannot place limitations on what beliefs you may hold, it can place limitations on the manifestation of those beliefs, provided that the limitation is a proportionate means of achieving a legitimate aim (protecting public order, health or morals, or the rights and freedoms of others). Thus a ban on corporal punishment in all schools may be justified for the protection of the children. A ban on jilbabs at school may be justified for the sake of the other pupils who did not want to be pressurised into wearing one. A ban on face veils in court may be justified in the interests of a fair trial.
An employer or supplier cannot directly discriminate against you because of your religion (“no Jews here”). Nor can he impose rules or practices which indirectly discriminate against particular believers because they will find it harder to comply with them than others who do not share their beliefs, unlesshe can justify the rule or practice as a proportionate means of achieving a legitimate aim.
Christians have sometimes faced problems with this, because our religion is so comparatively undemanding. The Church of England, for example, has no dietary laws, no dress code for men or women, and very little that is positively required of us by way of religious observance (I seem to recall being taught in my confirmation classes that we must take communion at least three times a year, including Easter Day, but it was a long time ago so I may have got that wrong).Christians have therefore found it harder to challenge their employers’ requirements as putting them at a particular disadvantage than have members of some other faiths whose rules are more demanding.
This is why a British Airways check-in desk worker and a National Health Service nurse, who were prohibited from wearing a discreet cross at work, lost their cases before the employment tribunals in this country even though Muslims were allowed to wear a headscarf, the hijab. But they received a rather more sympathetic response from the European Court of Human Rights in Strasbourg. That court found that wearing a cross was indeed a manifestation of their religious beliefs, but the NHS ban on jewellery of any kind was justified for health and safety reasons, whereas the British Airways ban was not justified.[7]And employment tribunals now have to take this into account when deciding religious discrimination cases.[8]
What should be going on is a careful balancing act between the different interests involved – those of the employee and those of the employer. The principle is trying toreach a fair balance – what is sometimes termed a reasonable accommodation - between them.
A rather different problem arises where there is a clash between two different equality rights. Examples were the cases ofMs Ladele, a registrar of births, deaths and marriages who would not take any part in registering civil partnerships and Mr McFarlane, a Relate counsellor who would not provide psycho-sexual counselling to same sex couples. Their deeply held conviction that same sex relationships were wrong conflicted with their employers’ obligations to offer their services without discriminating on the ground of sexual orientation, another characteristic protected by the Equality Act. They both lost their cases before the European Court of Human Rights.[9]There was indirect discrimination against Ms Ladele, because her employers did not have to designate all their registrars civil partnership registrars, but it was justified to protect the rights and freedoms of others. In fact, Ms Ladele might not have lost her job if she had been prepared to accept the compromise offered by her employer, which would have let her off having to conduct civil partnership ceremonies, while requiring her to do related administrative tasks. Mr McFarlane accepted that it was not practicable for his employer to screen clients in advance.These were cases where a reasonable accommodation had either been offered or was just not possible.
In these cases, the employer was providing the service to the customers or clients and had a duty to provide it without discrimination, but the employees did not want to do so for religious reasons. The problem is more acute when it is the believer who is providing the service and asks the court to excuse him from the obligation to provide that service without discrimination.This was the situation with Christian hotel keepers who would only let their double-bedded rooms to “heterosexual married couples” (although, perhaps naively, they would let their single and twin-bedded rooms to anyone).[10] They claimed that their rule was justified by their religious beliefs and that to hold otherwise would be an interference with their right to manifest their beliefs.
This is, I think, an example of the sort of claim made by believers which is not legitimate. It boils down to a claim that their religious belief should dictate what the law is. Parliament has said “thou shalt not discriminate”. It has not made any exception for conscientious objection in the provision of goods and services. Sometimes it does make an exception – turban-wearing Sikhs were long ago absolved from the requirement to wear crash helmets. But the difference between them and the hotel keepers is that they are not harming other people if they put themselves at risk in this way. Denying people a service which you are prepared to offer others, because of their personal characteristics, is deeply harmful to those people. It is reminiscent of the days when women were not allowed to order their own drinks at the bar and landlords were allowed to say “no blacks here”. It is not surprising that Parliament, having given the matter careful consideration, decided not to make an exception for this case.
We can, I think, still take pride in the “inextricable link between the Judaeo-Christian tradition of the Bible and the institutions, the values and the virtues of British society”. Our law’s respect for human dignity, for liberty and for equality may indeed be traced to the religious tradition that we share. I certainly hope that the Churchand the law will continue to fight for those values which are precious to us all.
1
[1]R (Hodkin) v Registrar of Births, Deaths and Marriages [2013] UKSC 77, [2014] 1 AC 610, para 57, Lord Toulson.
[2]McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 872, para 21.
[3]S.A.S. v France, App no 43835/11, Grand Chamber Judgment of 1 July 2014, para 124.
[4]Ibid, para 127.
[5]R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246.
[6]R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.
[7]Eweida v United Kingdom (2013) 57 EHRR 213.
[8]Mba v London Borough of Merton [2013] EWCA Civ 1562.
[9]Eweida v United Kingdom, above.
[10]Bull v Hall [2013] UKSC 73, [2013] 1 WLR 3741.